Breede Valley Onafhanklik v Speaker of Breede Valley Municipality and Others

The applicant, Breede Valley Onafhanklik (BVO), a political party represented on the Breede Valley Municipal Council, sought to review the Council's decision to unilaterally appoint BVO's councillors to serve on section 80 committees established under the Local Government: Municipal Structures Act 117 of 1998. In December 2021, the Council adopted resolution C114/2021 establishing various section 80 committees and calling on each political party to nominate one councillor to serve on the committees by 10 December 2021. BVO did not nominate any members by this deadline. In March 2022, BVO wrote to the executive mayor questioning the necessity of the committees and was informed that no executive powers had been delegated to them. BVO's councillors did not participate in the committees from February 2022. The Speaker sent letters in July and August 2022 warning BVO of potential sanctions for non-attendance and requesting participation. On 23 August 2022, the Council adopted resolution C100/2022, which unilaterally nominated and appointed BVO's councillors to the various section 80 committees. BVO had objected to this agenda item the day before the meeting. Following the appointments, BVO's members continued to refuse attendance. On 14 February 2023, BVO launched a review application to set aside the Council's decision, contending it constituted administrative action reviewable under PAJA or, alternatively, that it was arbitrary and irrational under the principle of legality.

• Whether BVO's review application was launched within a reasonable time as required by section 7(1) of PAJA.
• Whether the Municipal Council's decision to unilaterally appoint BVO councillors to section 80 committees constitutes administrative action reviewable under PAJA or executive action reviewable under the principle of legality.
• Whether the Council's decision was ultra vires resolution C114/2021, which required political parties to nominate councillors to serve on section 80 committees.
• Whether the Council's decision was rationally connected to a legitimate purpose and not arbitrary, as required by the principle of legality.
• Whether the process followed by the Council in appointing BVO councillors without a hearing amounted to procedural irrationality.

The application was dismissed with costs, with costs of counsel on scale B as from 12 April 2024.

The decision of a municipal council to appoint councillors to section 80 committees under the Local Government: Municipal Structures Act constitutes executive action and not administrative action under PAJA. This is because the source and nature of the power is executive, deriving from section 160(1)(c) of the Constitution and forming part of the executive functions in the Structures Act; section 80 committees serve as adjuncts to the Council's policy-formulating function; and the decision impacts only the internal structure of the Council without direct external legal effect. Under the principle of legality, a municipal council is empowered to unilaterally appoint councillors to section 80 committees even without party nomination, as section 80 provides an unqualified power of appointment; such unilateral appointment is rationally connected to the objectives of ensuring proper committee functioning, fair representation under section 160(8) of the Constitution, and enforcing councillors' obligations to participate in municipal governance. Councillors have a special legal duty rooted in their elected role to participate in council and committee activities, which means procedural fairness in the form of a hearing is not required before appointment.

The court expressed reservations about whether the application was launched within a reasonable time, given the nearly six-month delay between the Council's decision and the launching of proceedings, but noted that the delay issue was not raised in the Municipality's answering papers. The court observed that while it may raise the issue of delay mero motu, judgments like Camps Bay Ratepayers advise caution in doing so where the respondent has not raised it. For reasons of judicial economy, the court declined to pronounce on the delay issue further.

This case clarifies the distinction between administrative and executive action in the context of municipal governance, specifically regarding the establishment and staffing of section 80 committees. It affirms that the creation of and appointment to section 80 committees under the Structures Act is executive action, subject to the less exacting constraints of the legality principle rather than the more rigorous scrutiny of PAJA. The judgment reinforces the principle that municipal councillors have a fundamental duty to participate actively in council and committee activities that transcends party political interests. It also confirms that a municipal council has the unqualified statutory power under section 80 to appoint councillors to committees even without the consent or nomination of their political parties, as this serves the constitutional imperative of fair representation and inclusive governance.